Some residents of sectional title complexes have found themselves in the dark not because of loadshedding, but because their electricity was cut off as a result of their failure to pay their levies and electricity charges.
READ: Everything you need to know about paying levies
“Do not risk this by non-payment of your body corporate account,” cautions specialist sectional title attorney and BBM Law director Marina Constas. She says that the courts are not sympathetic to sectional title property owners who are accumulating substantial arrear levies and electricity charges. Constas’s team at BBM Attorneys has successfully represented several bodies corporate and managing agents in recent cases where they sought to disconnect the electricity supply to sectional title units because arrear levies – including electricity charges - were not being paid.
“Court action is a tough step for the trustees to take, but in the current challenging financial times, bodies corporate are struggling and cannot carry the substantial debts that are being racked up by non-payment of levies. All sectional title role players, including owners and tenants, should be aware that it is legally possible to cut off the electricity of a levy payment defaulter with a High Court order,” Constas stresses.
“In the cases that my firm has recently been involved in, there have been significant amounts of money at stake. In one of the recent matters, the owner owed the Body Corporate just over R100 000. It is interesting to note that orders were granted for much smaller amounts, too. If a body corporate does not recover payments, it will be forced to advance monies to the Council on behalf of section owners who do not pay for electricity consumption. This is an untenable situation and trustees have a fiduciary duty to see that they collect the arrear charges.
“The Community Schemes Ombud Service (CSOS) has held that trustees in apartment buildings and complexes do not have the legal right to terminate or reduce electricity services because an owner is in arrears with their levies. Owners with arrear levies may have felt protected by this CSOS directive, but there is more to it. If the owner has built up substantial arrear levies – including electricity payments - the trustees can certainly obtain a High Court order to disconnect the power.”
Abrahams & Gross’s Litigation and Dispute Resolution attorney, Henno Bothma, explains the role of CSOS:
The role of CSOS in Body Corporate Disputes:
- Mediation and Dispute Resolution: CSOS serves as an impartial mediator, facilitating negotiations and discussions between conflicting parties. They provide a neutral platform where stakeholders can express their concerns, clarify misunderstandings, and work towards mutually acceptable resolutions. Utilizing their expertise in dispute resolution techniques, CSOS helps prevent conflicts from escalating into costly and protracted legal battles.
- Enforcement of Compliance: CSOS acts as a regulatory body that enforces compliance with governing laws, regulations, and bylaws within body corporates. They monitor and investigate complaints regarding non-compliance, ensuring that all parties adhere to the established rules and obligations. By enforcing compliance, CSOS maintains a fair and equitable environment, discouraging violations that could lead to disputes.
- Policy Development and Advocacy: CSOS engages in policy development and advocacy efforts to enhance the governance of body corporates. They work closely with policymakers, legislators, and government bodies to propose reforms that address the evolving needs of communal living arrangements. Through research, policy analysis, and dialogue, CSOS strives to improve existing frameworks, promote transparency, and strengthen the legal protection of residents' rights.
READ: How to calculate your sectional title levies
She reports that in a recent case involving arrear levies and electricity charges of more than R300 000 owed by an owner at a complex in Killarney, Gauteng, the owner sought to challenge the High Court disconnection order against him. “This failed, too. In addition, a costs order was obtained against him.”
Constas recommends that bodies corporate go to court when more than R20 000 is owed in arrear levies and electricity charges. “If the property is occupied, I believe that a court order to disconnect the electricity is the best way to recover what is owed by the defaulting owner. Once the High Court has issued the order, the Sheriff will go and disconnect the power to the unit. The disconnection applications do not relate to schemes with pre-paid meters.”
She reveals that BBM Law is currently charging a fixed fee to bodies corporate for a High Court application to cut off a unit’s electricity. “This cost can be placed on the owner’s levy account once it has been taxed and recovered by the body corporate,” she explains. If the owner still fails to pay what is owed, the trustees can proceed immediately with a warrant of execution and inevitably an application to attach and sell the unit. .
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“The message from the courts is clear. Trustees and managing agents do have the power to disconnect the electricity with a High Court order when a sectional title owner consistently fails to pay arrear levies – including electricity charges. I urge bodies corporate to not shy away from court action, which is increasingly proving the best way to hold defaulting owners to account,” says Constas.
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